
■&/ 



LIBRARY OF CONGRESS 

iiiiiii* 



THE ANNEXATION OF WEST 
FLORIDA TO ALABAMA 



BY 

FRANCIS G. CAFFEY 

OF THE MONTGOMERY BAR, 



A PAPER READ BEFORE THE ALABAMA STATE BAR ASSOCIATION, 
JUNE 28th. 1901. 



[Keprluted from the Proceedings of the Assoeiiition. | 



THE ANNEXATION 
OF 

WEST FLORIDA TO ALABAMA. 

HV 

FRANCIS G. CAFFEV 01 Montgomery. 



The pari of Alabama lying north of the thirty-firsl 
degree of north latitude was ceded by Georgia to the 
United States, and becanre a pari of Mississippi Terri- 
tory in L802. in the cession ii is described as all of 
the lands to which Georgia 1ms any claim within the 
United States south of the State of Tennessee ami west 
of a line "beginning on the western hank of the Chatta- 
hoochee River, where (he same crossed the boundary 
line between the United States and' Spain, running 
thence up the said river," etc. The pari of Alabama 
lying south of the thirty-firsi degree and the part of Flor- 
ida south of this line, between the Apalachicola and 
Chattahoochee rivers on the east, and the Perdido river 
on the west, are within what was formerly known as 
"West Florida." The portion of West Florida lying wesl 
of the Perdido River was added to .Mississippi Territory 
l.v an acl of Congress In L812 and was included in Ala- 
bama Territory, when it was established, in L817. Bui 
Spain did not finally give up all claim to it until L819. 

In the Constitution of L819, ami in every Constitu 
tion of this State sim • that time, following the terri- 
torial ;i<i of L817, the boundaries of Alabama are de 
scribed as "beginning ai the point where the 31s1 degree 
of north latitude crosses the Perdido River: i hence easl 



to the western boundary line of the State of Georgia ; 
thence along said line to the southern boundary of 
the State of Tennessee"; thence along the boundaries 
of the States of Tennessee and Mississippi to the Gulf 
of Mexico; "thence eastwardly, including all islands 
within six leagues of the shore, to the Perdido River; 
thence up the said river to the beginning.'' 

The portion of original West Florida which became 
a part of the State of Florida has always been popularly 
called West Florida. It contains a little more than 
ten thousand Square miles of bind and constitutes about 
one-fifth of tlie State of Florida; lias about one hun- 
dred and eighty miles of sea coast and four harbors; 
and is divided into eight coun'ties — Calhoun, Escambia, 
Franklin, Jackson, Washington, Holmes, Santa Rosa, 
ami Walton — the first live, curiously, bearing the same 
names as counties in Alabama. 

Florida was admitted into the Union in 1845, ami 
before ami ever since the admission, West Florida has 
been coveted by Alabama, and lias bad within it many 
citizens who favored its annexation to this State 

In L811 the inhabitants of West Florida petitioned 
Congress to be incorporated into Mississippi Terri- 
tory. The Constitutional Convention of L819 in this 
State memorialized Congress to embrace all of wesi 
Florida in the State of Alabama. 

In the Constitution of L819 the preamble defines the 
boundaries of this Slate and then adds "subject to such 
enlargement as may be made by law in consequence of 
any cession of territory by the United States, or either 
of them." Art. VI, Sec 17. provides that "in all cases 
of ceded territory acquired by the State" the General 
Assembly may arrange the boundaries of counties, 
and Art. VI, Sec. 22, that -'in the event of the annexa- 



J F '02 



tion < f any foreigD territory to this State, by a cession 
from the United States, laws may be passed, extending 
to the inhabitants of such territory all the rights and 
privileges which may be required by the terms <>!' such 
cession, anything in this Constitution to fche contrary 
notwithstanding." Each of the subsequent Constitu- 
tions Of L861, 1865, 1868 mid 1875 contains the same 
provision as the Constitution of L819 as to extending 
such rights an<l privileges to acquired territory as is 
required by the terms of cession, except that it is not 
Limited t<> cession from the United States, because at 
the time of their adoption all the territory adjoining 
Alabama was pari of some State. (Constitution of 
L861, Aim. VI, Sec. 21; of 1865, IN', Sec. 12; of L868, 
IV, Sec. 37; <>f 1875, IV, Sec. 51.) These provisions 
indicate that our constitution framers h: ve always 
been alive to the question of annexation. 

By a joint resolution of the Legislature of Alabama, 
iu 1858 (Acts of L857-8, p. 432), Alabama proposed 
to Florida that it ci'(\e to this State "all that portion of 
Florida lying west of the Chattahoochee and Apala- 
chicola Rivers;" and, under it, Governor .Moore ap- 
pointed Judge <!. T. Velvorton, of Coffee County, as 
commissioner, to procure the cession. Bui Florida re- 
fused to agree to any t rausfer. 

There were, doubtless, between 1819 and 1858-other 
attempts to secure annexation, but none of them at- 
tained enough prominence to be worthy of mention. 

After the civil war, however, when public money was 
freely spent in Alabaimi, the most serious attempt ever 
undertaken to bring about annexation occurred, be- 
tween L868 and 1873, ami it is with this movement 
thai this paper will, for the most part, deal. 



4 

In 1880 there was an annexation convention at Chip- 
ley, Florida, which was largely attended by the people 
of West Florida concerned and by some Alabamians; 
but no steps were taken. 

During the past year there has been a revival of the 
agitation in favor of annexation in Florida, particu- 
larly at Pensacola, and there have been interchanges 
between the two States of visits of delegations of gen- 
tlemen interested in the subject. Under an act of the 
last General Assembly of Alabama (Acts 1900-1, p. 
192), Messrs. William L. Martin, Richard C. Jones 
and Samuel Blackwell have been appointed commis- 
sioners on behalf of this State with authority to con- 
summate terms of cession, subject to the ratification of 
the Legislature and Governor. A resolution on the 
subject is now pending before our Constitutional Con- 
vention, and it is proposed to provide in the new Con- 
stitution ample power for the Legislature to authorize 
an issue of bonds to carry out the contract, if a pur- 
chase should be made. But nothing more definite has 
yet been accomplished 

Iii December, L868, -I. L. Pennington, a Senator from 
Lee County, introduced into the Legislature of Ala- 
bama joint resolutions authorizing and directing the 
Governor "to negotiate with the State Governmenl of 
Florida for the annexation to the State of Alabama 
of that portion of Florida lying west of the Chatta- 
hoochee River." These were promptly passed, and in 
January, L869, Governor Smith appointed commision- 
eis, who went immediately to Tallahassee and remained 
until they secured action by the Florida authorities. 

The Alabama commissioners were .Mr. Pennington, the 
author of the resolutions, who was a North Carolinian 



by birth, who had come to Alabama after the war and 
become prominent as a republican politician; Charles 

A. .Miller, the then Secretary of State, wlm had come 
from .Maine subsequent to the war; and -Indue A. -J. 
Walker, who had shortly before been ousted from the 
Supreme Court bench by the reconstruction govern- 
ment. 

()n their arrival at Tallahassee the commissioners ad- 
dressed a letter to Governor Reid of Florida, who re- 
plied favorably, and submitted their communication to 
the Legislature with a recommendation that commis- 
sioners he appointed to represent Florida in the negotia- 
tions. \'>\ invitation, .Mi - . Pennington addressed the Leg- 
islature, and on January 26th, joint resolutions, similar 
to those which had been passed in Alabama, were adopted 
by the Florida Legislature, directing the Governor to 
appoint three commissioners who were authorized to go 
to Montgomery as "the duly accredited agents of this 
State to negotiate for said transfer." 

The arguments used by the Alabama commissioners 
in favor of annexation were, •'the regularity id' the 
geometrical figure which it would give Alabama, and the 
'improvement it would make in the outlines of Flor- 
ida"; "|the homogeneity of tastes, sentiments, and inter- 
ests between the peoples" of West Florida and Alabama, 
which was asserted to be much greater than between Wesl 
Florida and the other parts of thai State; and the impor- 
tance to Alabama of Pensacola as a harbor for, and the 
advantages which i hat city would derive from, the devel- 
opment of the coal and iron of central Alabama. Benefit 
of the Alabama railway endorsement law was also prom- 
ised. In concluding his address bo the Legislature, Mr. 
Pennington said : "Gentlemen, give as the harbor of Pen- 



6 

saeola and we will connect it by rail with our capital 
and our new system of railroads in ninety days 
after the transfer shall have been made; and within two 
years or less we will penetrate our mineral regions, 
open ii]) a great internal highway from the Gulf to the 
Northwest, build up a great commercial city of Pensa- 
cola, winch will confer alike its benefits on your Slate 
and our State, and enrich the people we propose to take 
from you." 

Under the resolutions of January 26th, Governor licit! 
appointed to represent the State of Florida W. C. Pur- 
liam, C. E. Dike and N. C. Moragne. The Montgomery 
Advertiser of May 3, 1869, in commenting on an article 
from the Eufaula News containing strictures upon these 
gentlemen, says: "The Florida commissioners are 
Messrs. Dike, Moragne and Purham. Mr. Dike has 
been a citizen of Florida, and has edited the leading 
Democratic paper, for many years. Dr. Moragne is a 
Democrat, a Slate Senator, a gentleman of property, 
influence and intelligence. Maj. Purham represents 
West Florida more particularly, being a citizen of that 
portion of (he Stale more immediately interested in the 
negotiations, and is also a member of the Florida Slate 
Senate from -Jackson County. It is true, he is a new 
settler in Florida, but his record in the Legislature 
shows that, although a Republican, he has not been con- 
trolled by extreme partisan views." 

The Florida commissioners came early in May. On 
the 19th of thai month au agreement of cession was 
signed. By this agreement Florida ceded West Florida 
and conveyed all its public lands within that territory 
to Alabama; provision was made for the transfer of 
jurisdiction and also for the continuance of local officers 



and for local courts. As a consideration, Alabama 
agreed to pay one million dollars in eight per cent, 
thirty-year bonds; i<» pay in money the amount of solvent 
taxes unpaid in the district at the time of consummation 
of the agreement; to permit the counties to retain the 
State taxes for one year thereafter for use in local im- 
provements and construction of public buildings; to con- 
firm the Florida charters of two named railroads; not to 
grant any other railroad charters in the district for three 
years, to give the benefil of the Alabama endorsement 
law to these two roads and to no other road for the 
period of three years. Lastly, it was provided thai the 
agreement should not he of force until ratified and ap- 
proved by the Slates of Alabama and Florida and :is- 
sented to by Congress. 

In transmitting the contract to Governor Smith, the 
Alabama commissioners expressed the opinion that the 
price offered was large. The total population was 26,67] 
in 1867, and the amount of State revenues for that year 
was only a little more than $31,000; hut they said this 
was set-off by the fact that Alabama would acquire two 
million acres of public lands estimated to be worth 
$1.25 per acre. They said in conclusion : "It is scarcely 
to lie conceived that Florida will reject the contract, if 
she is willing under any circumstances to cede any pari 
,,C her territory. If she should, from a sentimenl i>\' 
State pride, reject the contract, the subject had belter 
be forever dropped, for we do not conceive thai a more 
favorable opportunity or a fairer or more honorable 
contract will ever be presented." 

Governor Smith promptly approved the contract, 
though he also thought thai "the price agreed to be paid 
t was i more than the si .He. under all the circumstances 
of the case, ought to give." 



8 

When the agreement was made public, there was con- 
siderable discussion of it in both States. In West Flor- 
ida the feeling was strongly in favor of carrying it out. 
In Alabama, the Montgomery Advertiser, while not 
wholly disapproving, withheld its approval, and looked 
with suspicion on the movement. The editor of the 
Ilavneville Examiner strongly opposed it, and said : "We 
are now in daily expectation of the announcement that 
the sand-bank and gopher region west of the Apalachi- 
cola has become part and parcel of the State of Alabama 
by the payment of some million or so of dollars on the 
part of the latter. We are to have another debt fastened 
upon the impoverished people of the State. What pos- 
sible good can be accomplished by this acquisition has 
not been told us." He also pointed out that the people 
of Alabama could use Pensacola as a harbor just as well 
as if it were part of Alabama. 'The Eufaula News 
thought the proposition was a good (me, both for 
Alabama and for West Florida, but thought the 
negotiators on tin 1 part of Florida were mere spec- 
ulators who did nol represent the people of the Slate. 
and would themselves personally profit out of the pro- 
ceeds of sale. 

On .June 25th Governor Reid issued a proclamation, 
in accordance with the joint resolutions adopted by tin 
Legislature of Florida, setting forth a copy of the agree- 
ment, for an election in the counties composing West 
Florida, for a vote for or against annexation. The 
Alabama commissioners participated in the campaign, 
and Mr. Pennington was specially active in making 
speeches and distributing printed mat let- setting forth 
the advantages of annexation. Be spent over a month 
and travelled more than a thousand miles through the 



9 

eighl counties by private conveyance during the canvass. 
The commissioners expended in the campaign four thou- 
sand dollars of the money authorized by the original 
joini resolutions of the Legislature of Alabama to de- 
fray the accessary incidental expenses incurred in con- 
ducting the negotiations. 

The election occurred on November 2, and in seven 
counties the result was nearly l\v<> to one in favor of the 
project. The total number of votes cast was L,823, of 
which 1,162 were for and <i('»l against annexation. No 
election was held in Jackson County, where the feeling 
was strongly favorable. 

When the Alabama Legislature convened on the loth 
of November, Governor Smith sent them the agreemenl 
of May 19th, and informed them that he would approve 
favorable action on it. Later, he officially informed 
them of the result of the election. 

In January, 1870, a joini resolution was introduced 
into the Alabama Legislature ratifying and confirming 
the agreement, and requesting the Representatives and 
instructing the Senators in ( 'ongress to secure the assent 
of 1 kmgress thereto. Some opposition was developed, hut 
the committee to whom the whole matter was referred 
reported favorably a hill for annxation, saying thai they 
were "satisfied that among the measures proposed for 
the advancement of the interests of our State, none ex- 
ceeds in importance, or is calculated to confer greater 
or more substantial benefits upon Alabama than the ac- 
quisition of this territory." In the latter pari of Feb- 
ruary, however, action was postponed until the nexl 
session, upon the assigned grounds thai the Legislature 
of Florida had adjourned ami would not convene again 
until January, L871, and thai the postponemenl would 



10 

give the people of Alabama time to consider the bill and 
instruct their Senators and Representatives how to vote 
upon it. 

It is not improbable that the postponement of the 
consideration of the bill was due to an investigation that 
was instituted at that session of the Legislature into 
the expenditures made by the commissioners, which 
amounted in 1869 to $10,500. The original resolution 
had placed no limit upon the commissioners, and had 
directed the Auditor, upon the order of the Governor, 
to draw his warrant upon the Treasurer out of any money 
not otherwise appropriated, "to defray necessary inci- 
dental expenses incurred in conducting this negotiation." 
On January 12th, just before the commissioners left for 
Tallahassee, they drew $500 each. This, they stated 
in writing, at the request of the special committee of 
the Legislature conducting the investigation for an ex- 
planation, they expended in personal expenses at Talla- 
hassee and in Montgomery. On the 17th of May, 1869, 
just two days before the agreement was consummated, 
they drew $5,000. Mr. Pennington says they entertained 
l he Florida commissioners. Two of them were iu Mont- 
gomery less than two weeks, and the third only a month. 
Judge Walker says they were "hospitably entertained 
at the Exchange Hotel." lie naively adds: "During 
t heir stay live thousand dollars was drawn from the State 
Treasury ami placed to the credit of Maj. Miller; six- 
teen dollars of this sum were paid by me on hack bills, 
which were presented to me." Maj. Miller was no more 
definite in his statement than that he was "sure the 
funds were expended according to the best judgment and 
discretion of the commission, for the sole purpose of ac- 
complishing the objects contemplated by the resolution 
of the Legislature." 



11 

Iii July the commissioners presented to the Auditor 
a requisition approved by the Governor for $4,000 more 

'•!<• be used in conducting the canvass in Wesl Florida." 
The Auditor declined to draw the warrant, and submit- 
ted the question of his authority to refuse t«> do so to 
the Attorney-General; pending investigation the words 
last quoted were stricken out of the requisition, and there 
were inserted in a new requisition, in their place, the 
following: "To defray the necessary incidental expen- 
ses incurred in conducting the negotiations." The At- 
torney-General, however, advised that the Auditor was 
without discretion, the warrant was drawn in August, 
and the commissioners frankly say that they \isv*\ this 
money to influence the election. 

The investigating committee were unable to procure 
any itemized statement, except as to Judge Walker's 
hack hills amounting to $16, and in their report they 
say: "While we do not charge the commission or any 
• me connected with the negotiation with appropriating 
any of said sum for private purposes, we deem the ex- 
penditure extravagant. We are of opinion thai the Legis- 
lature did not contemplate an expenditure by virtue "f 
said joint resolution to exceed $1,200 or $1,500 and that 
the money drawn and expended amounting to four thou- 
sand dollars or more for the purpose of influencing an 
election in a neighboring State was contrary to the 
spirii of said resolution and wrong in principle." 

Another ground of opposition to the measure was the 
provision therein for the endorsement ,,)' $16,000 per 
mile id' the bonds of the Florida railroads radiating 
from Pensacola. The Legislature of Alabama had i>.\ an 
act "to amend the law establishing a system of internal 
improvements in the State of Alabama," approved Sep- 



12 

tember 22, 1868, provided for such an expenditure for 
Alabama railroads, and it is noticeable that great par- 
ticularity was used in the agreement to provide that 
the same law should be applicable to specified Florida 
railroads. Between the passage of this endorsement acl 
in September, 1868, and the meeting of the Legislature 
in November, 1869, Alabama railroad bonds had been 
endorsed to the extent of $2,600,000. 

There was, perhaps, no greater or more fruitful scheme 
of thievery adopted by the reconstruction government 
in Alabama than its piovisions as to railroads, and the 
tacking on of the endorsement law to the annexation 
agreement stamps it as partially, at least, a piece of 
jobbery. 

In Florida, meanwhile, Governor Held, in January, 
1870, reported to the Legislature the result of the No- 
vember election, and said that he presumed that no con- 
siderable proportion of the people of the State of Florida 
or their representatives would seriously entertain the 
idea of ceding one-fifth of the territory and population 
of the State and the finest harbor on the Gulf to another 
State, almost without consideration. It has been charged 
thai I he real ground of the Florida Governor's loss of 
interest and subsequent failure to promote the project 
was a disagreement between the persons concerned over 
a division of the spoils. I have discovered no proof of 
this charge; but the fact remains that, though the people 
of West Florida continued the agitation in favor of 
annexation, and there was, especially in the neighbor- 
hood of Pensacola, strong popular opinion in favor of 
I he measure, no further official Steps were ever taken 
by the Florida Government to effect that end. 

In Alabama the question came up before several sub- 
sequent sessions of the Legislature, but no further ac- 



13 

tion was taken until L873. In the session of 
L870-71, a resolution favoring annexation was 
adopted by the House, but failed in the Sen- 
ate. During the session of L871-2, the only reference 
to the subjecl was a join! memorial from the citizens of 
West Florida, on which no action was taken. On March 
22, 1ST.'}, Senator Wilson offered a joint resolution con- 
templating the annexation of West Florida to the Stale 
of Alabama by selling all that portion of her territory 
west of the Tombigbee River, including Mobile, to the 
State of Mississippi, which was read and indefinitely 
postponed. On the same day a joint resolution propos- 
ing a renewal of the negotiations for the annexation of 
West Florida to Alabama was introduced into the House 
ami referred to a selert committee, of which Samuel <!. 
Jones was chairman, and he reported a hill which was 
adopted. The act was entitled "to provide for the an- 
nexation of West Florida to the State of Alabama, with 
the assent of the State of Florida and the Congress of 
the United Stales." It followed closely the terms of the 
coiiii-.icl of .May L9, L869 ; authorized the issuance of one 
million dollars of bonds, payable in thirty years bear- 
ing interest at eighl per cent., to he paid to Florida as 
consideration and compensation for the cession of the 

soil and jnrisilid i if the part of Florida described, 

intended to be conveyed, including the lauds belonging 
I,, the Slate. It further provided that the Governor 
should appoint three commissioners on the pari of Ala- 
bama to tender these bonds to the State of Florida "and 
to do nnd perform all acts and things which may be 
requisite and necessary to perfect ami consummate the 
cession of the territory aforesaid"; provided, thai they 

Were limited |<. the amOUnl above described, and pro 



14 

vided, further, that upon the acceptance by the State 
of Florida of the tender and ratification by Congress of 
the act of cession, "the cession herein provided shall be 
complete and the bonds of the State hereinbefore men- 
tioned shall be executed and delivered by the authorities 
of the State of Alabama to the State of Florida in full 
satisfaction and compensation of the cession of the ter- 
ritory aforesaid." 

The vote in the House on the adoption of the bill was, 
yeas 49, nays 21). Mr. Manning raised the point of order 
that it required two-thirds of all the members of the 
House to pass the bill, but the speaker overruled it. When 
the bill came up in the Senate, Mr. Peter Hamilton of 
M'obile proposed to amend it by providing that the com- 
missioners should report to the next session of the Gen- 
eral Assembly what they had done under the act, and 
the same should not be binding on the State until rati- 
fied by the Legislature. This amendment was laid on 
the table and the bill was passed by a vote of ayes 19, 
noes G. Mr. Hamilton then made the point that the bill, 
not having the concurrence of two-thirds of the Senate, 
was lost; but the president overruled the point, and an- 
nounced that the bill had passed. Mr. Hamilton there- 
upon filed and had spread upon the record his protest, 
which was joined in by Senators Cooper, Cunningham 
and Terrell, upon the grounds (1 ) that as the bill pro- 
vided for raising "money on the credit of this State" il 
could not become a law under Art. IN', Sec. :>L\ of the 
Constitution of L868, "without the concurrence of two- 
thirds of the members of each Bouse"; (2) that under 
Ait. I V, Sec. 37, of the same Constitution, making it the 
duty of the Genera] Assembly to enact laws extending 
to the citizens of the newly acquired territory "all the 



i^> 



rights and privileges wliicli may be required by the terms 
of the acquisition," the Legislature must reserve to itself 
the exercise of this duty, and it had beeD undertaken by 
the ad to confer it upon the commissioners; and (3) 
that the financial condition of the State did not justify 
i lie pa viiient of t he proposed price. 

So far as ! have been able to discover, nothing official 
was ever done under the act of 1S7:», though the subject 
was discussed further for several years. The Democrats 
under Governor Houston came into power shortly after, 
the Constitution of 1875 prohibited the State from Lend- 
ing money or its credit in aid of internal improvements, 
and the matter of annexation was dropped until the 
Chipley Convention of 1889, referred to above. The 
movement of 1868-73 had certain artificial aids in the 
concurrent railway schemes and the prevailing reck- 
lessness in spending the State's money, which will prob- 
ably never exist again. It remains to be seen whether 
the movement of L900-1 will lake substantial shape. 

Although net perhaps just now a matter of practical 
importance, it may not be without interest to examine 
some of the legal questions suggested by the contract 
of L869 and the act of 1873. The constitutions of Ala- 
bama have always contemplated annexation, and im- 
pliedly, if not expressly, recognized the power of the 
State to contract for cessions id' foreign territory. Bui 
;in examination of the history of the States and the pro- 
visions of the Federal Constitution makes it clear that 
no such provision in our Slate Constitution was acces- 
sary. 

At the tiaie of the adoption of the Articles of Confed- 
eration there existed disputes ;is to the boll llibl ries be 
tweon eleven Of the States. These arose, for the most 



16 

part, out of the conflicting- terms of grants made by the 
British crown to the various colonies. For the purpose 
of settling these, it was provided by Article IX, Sec. 2, 
that "the United States in Congress assembled shall * 
* * be the last resort on appeal in all disputes and 
differences now subsisting or that hereafter may arise 
between two or more Stales concerning boundary, juris- 
diction, or any other cause whatever"; and par- 
ticular provision was made for the appointment 
of commissioners to conduct the negotiations. 
In Article VI, Section 2, it was further pro- 
vided: "No two or more States shall enter into any 
treaty, confederation, or alliance whatever between them 
without the consent of the United States in Congress 
assembled, specifying accurately the purposes for which 
the same is to be entered into and how long it shall 
continue." 

There was no national judiciary provided for in the 
Articles of Confederation, but when the Constitution of 
the United States was adopted it provided a federal 
judiciary and contained a provision in Art. Ill, Sec. 2, 
as follows: "The judicial power shall extend * * * 
to controversies between two or more States." Under 
this clause in the Constitution, the Supreme Court of 
I lie [Jnited States has determined a great ninny boun- 
dary disputes, and has had occasion to expound the law 
relating to boundaries. 

It is recognized in international law, as one of the at- 
tributes of sovereignty, that a nation has power to 
contract with other nations and to cede territory. The 
( 'oust it ul ion of the United States is a grant of power 
from the people of the States in convention assembled, 
and except in so far as powers which the separate States 



17 

\\ ould have ;is sovereignties are real ricted, <>r are express- 
ly or by necessary implication granted i<> the Federal 
Government, the Slates retain all powers which they 

would have had as independent members of the family of 
nations By Article I, Section 10, (Manse 3, of the 
Federal Constitution, it is provided: "No State 
shall, without the consent of Congress * * * 
enter into any agreement or compact with an- 
other State." With the exception of this limita- 
tion, the States retain the full power which they 
would have had as independent nations to contract with 
each other in reference to territory and to cede parts of 
their territory to another. CJnder the original jurisdic- 
tion winch the Supreme Court has under the Constitu- 
tion over "controversies between States," the usual 
course of procedure, where boundaries are in dispute, is 
for one State to tile a hill in equity against the other for 
determination of the dispute. There has been a large 
variety of these cases, hut nearly all of them have been 
where there has been a dispute in reference to boundary 
as to which the States concerned could not agree. In 
Several, however, the question has turned upon the 
validity id' a contract and negotiations between the 
States. In these cases the Supreme Court has taken 
occasion to interpret clause :{ of Sec. 10, Art. I, of the 
< 'oust it ut ion. 

In Poole v. Flecger, 11 Peters L85, decided in 1837, 
the question came up collaterally. Kentucky and Ton- 
ee had by a compact made in L820, which was as- 
sented to by Congress, settled a dispute as to their bound- 
daries, and Story, J., said : "It cannot be doubted that 
li is a part of the general righl of sovereignty belonging 
to independent nations to" establish ami ti\ the disputed 



18 

boundaries between their respective territories. * * 
* It is a right equally belonging to the States of this 
Union, unless it has been surrendered under the Consti- 
tution of the United States. So far from there beiiii» 
any pretense of such a general surrender of the right, 
that it is expressly recognized by the Constitution, and 
guarded in its exercise by a single limitation or restric- 
tion, requiring the consent of Congress. The Constitu- 
tion declares that 'no State shall, without the consent 
of Congress, enter into any agreement or compact with 
another State'; thus plainly admitting that, with such 
consent, it might be done/' 

In Rhode Islam! v. Massachusetts, 12 Peters 725, de- 
cided the following year, referring to the same clause of 
the Constitution, Baldwin, J., says : "By this surrender 
of the power, which before the adoption of the Consti- 
tution was vested in every State of settling these con- 
tested boundaries, as in the plentitude of their sover- 
eignty they might, they could settle them neither by 
war, or, in peace, by treaty, compact, or agreement, with- 
out the permission of the new legislative power which 
the States brought into existence by their respective 
and several grants in conventions of the people. If 
Congress consented, then the States were in (his re- 
sted restored to their original inherent sovereignty; 
such co: sent being the sole limitation imposed by the 
Constitution, when given, left the States as they were 
before, * * * whereby their compacts became of 
binding force, and finally so! tied the boundary between 
them, operating with the same effed as a treaty between 
Sovereign powers. * * * In looking to the practi- 
cal construction of this clause of the Constitution re- 
lating to agreements and compacts by the States, in sub- 



19 

mitting those which relate to boundaries to Congress 
for its consent, its giving its consent, and the action of 
this court upon them, it is most manifest that by univer- 
sal consent and action, the words agreement and com- 
pact are construed to include those which relate to 
boundary ; vet that word, boundary, is not used. No one 
has ever imagined that compacts of boundary were ex- 
cluded because not expressly named; mi the contrary, 
they are held by the States, Congress, and this court, t<» 
he included by necessary implication, the evident con- 
sequence resulting from their known object, subject- 
matter, the context, and historical reference to t In- 
state of the times and country. No such exception has 
been thought of, as it would render the clause a perfect 
nullity for all practical purposes, especially the one 
evidently intended by the Constitution, in giving to 
Congress the power of dissenting to such compacts. 
Not to prevent the States from settling their own boun- 
daries, so far as merely affected their relations to each 
other, hut to guard againsl the derangement of their 
federal relations with the other States of the 1'nion 
and the Federal Governmenl which might ho injuriously 
affected if the contracting States might act upon their 
boundaries at their pleasure. * * * Hound hand 
ami foot by the prohibitions of the Constitution, a com- 
plaining State can neither treat, agreeor fight with its 
adversary without the consent of Congress; a resort to 

the judicial power is tl nly means left for legally 

adjusting or persuading a Slate which has posession 

of disputed territory to enter into an agreement <>r 
compact relating ton controverted boundary. * * 
There can he hut two tribunals under the Constitution 
who can act on the boundaries of States, the legisla- 



20 

tive or the judicial power; the former is limited in ex- 
press terms to assent or dissent where a compact or 
agreement is referred to them by the States, and as the 
latter can be exercised only by this court when a State 
is a party, the power is here, or it cannot exist." 

In the recent case of United States v. Texas, 143 U. 
S. 621, the court, referring to boundary disputes which 
existed at the time of- the adoption of the Constitution, 
say : "The necessity for the creation of some tribunal 
for the settlement of these and like controversies that 
might arise, under the new government to be formed, 
must, therefore, have been perceived by the framers of 
the Constitution, and, consequently, among the contro- 
versies to which the judicial power of the United States 
was extended by the Constitution we find those between 
two or more States. And that a controversy between 
two or more States in respect to boundary is one to 
which, under the Constitution, such judicial power ex- 
tends, is no longer an open question in this court." 

So in Virginia v. West Virginia, 11 Wall. 39, Miller, 
J., says : "We consider, therefore, the established doc- 
trine of this court to be, that it has jurisdiction of ques- 
tions of boundary between two States of this Union, 
and that this jurisdiction is not defeated, because in 
deciding that question it becomes necessary to examine 
into and construe compacts or agreements between 
those States, or because the decree which the court 
may render, affects the territorial limits of the political 
jurisdiction and sovereignty of the States which are 
parties to the proceeding." 

In the last case cited, and also in the case of Vir- 
ginia v. Tennessee, 148 U. S. 503, in both of which there 
was an express compact between the contracting States 



21 

in reference to boundary, it was held that such consent 
need no1 be express, bul might be implied. In the Ten- 
nessee case Congress provided for federal appointments 
of officials, elections were held under its authority, 
taxes were laid and revenues collected up to the line 
agreed upon. The court say such use of the territory 
mi different sides of the boundary designated in a single 
instance would not, perhaps, be considered as abso- 
lute proof of the consent of Congress, but such exercise 
of jurisdiction and hum acquiescence therein is con- 
clusive pi-oof of assent. In the West Virginia case. 
where a statute of Virginia provided that elections might 
be held in the counties to determine whether they should 
l>e annexed to West Virginia, which had theretofore 
been established, and the Governor of Virginia should 
ascertain and certify the result to the Governor of 
West Virginia, it was held that the ascertainment and 
certification by the Governor of Virginia to the Gov- 
ernor of West Virginia was conclusive, and Congress, 
having given iis consent, it could not he gone behind 
and investigated; ami that a subsequent statute of Vir- 
ginia, repealing theacl of the Virginia Legislature under 
which the election was held, was without effect, as the 
cession was then a completed transaction. 

It is evident, therefore, that any State of the United 
States may cede ;i pari of its territory to another State. 
provided and provided only — that Congress uives iis 
assent thereto. Under the accepted doctrine in Ala- 
bama the power on the part of this State to enter into 
such an agreement rests in the legislative department. 
because there is not in our state Constitution a limita- 
tion upon the exercise of such power by the Legislature. 
It is also clear from the foregoing that if an agree- 



22 

incut of cession by one State of a part of its territory 
to -mother State is entered into and such an agreement 
assented to by Congress, the Constitution provides a 
tribunal* namely, the Supreme Court of the United 
States, nJi irh will enforce such agreement. 

It is almost axiomatic in the history of this country 
that the feeling in favor of State integrity is so strong 
that no State will ever give up any part of its terri- 
tory. Even Texas, which has sufficient territory to make 
a dozen New England States, will never, in all 
probability, give up an inch of her territory voluntarily, 
and, while in the cases of Virginia and Tennessee, and 
Tennessee and Kentucky, contracts in reference to ter- 
ritory were entered into, they really, in both cases, 
were the outcome of disputes as to lines which had long 
previously been established. The only instance in the 
history of this country that I know of where any por- 
tion of the territory of one State has ever been, by ex- 
press contract, without any previous boundary dispute, 
ceded to another, was the case of the two counties of 
Berkley and Jefferson, coded by Virginia to West Vir- 
ginia; and it may be fairly said that there was never 
an expression of the will of the people of Virginia in 
favor of that. When the civil war came on dual gov- 
ernments were erected and maintained in the Slate of 
Virginia, and the so-called Poindexier government, rep- 
resenting the Unionists, which was subsequently recog- 
nized by (lie Federal Government as being the Lawful 
government, erected out of the territory of Virginia the 
new Stale of West Virginia, which was admitted into 
Hie Union. The statute providing for the erection of 
this now State, and subsequent statutes, provided that 
certain counties, including Berkley and Jefferson, 



23 

might, if in ;iii election thereafter to be held, they favored 
it, be annexed to West Virginia, While the election in 
the two counties subsequently held was ascertained to 
be favorable to annexation by the Union Governor of 
Virginia, the annexation of these two counties was, in 
a sense, a parcel of the original movement for the erec- 
tion of the separate Stale of West Virginia, and the 
election was not held at the time of the original an- 
nexation because those two counties at that time were 
in the control of the Confederate forces; and, further, 
the election subsequently held was participated in only 
l>y a small proportion of the people. Furthermore, Vir- 
ginia received no consideration for the territory parted 
with. This has been aptly termed the "rape of Vir- 
ginia," and it is notable that the only other serious 
movement in this country for the cession of one part of 
a siate to another by contract occurred during recon- 
struction times, when aliens were, for the most part, 
in control of the governments in both Stales concerned. 
The West Florida movement differs from any other in 
that it was proposed by one State to pay another Slate 
money for a pari of its territory. 

The point made by Senator Hamilton on the act of 
1st:: under the Constitution of L868 prohibiting the bor- 
rowing or raising of money on the credit of the State, 
without the concurrence of two-thirds of the members 
of each house, was probably sound; but there can be no 
doubt that under Art. XI, Sec. : > ,, of the present Consti- 
tution, absolutely prohibiting, after its ratification, any 
new debt being "created against or incurred by this 
Stale, or its authority, except to repel invasion or sup- 
press insurreel ion." it would require a constitutional 
amendment to authorize the payment of any mone\ or 



24 

the incurring of any obligation to pay money for West 
Florida. This, however, is purely a question of domestic 
law, which could not stand in the way if the people of 
the State were sufficiently anxious for annexation. It 
does not affect the power of the State to acquire for- 
eign territory by cession. 

If the proposition now pending in this State assumes 
more definite shape, the Constitutional Convention, now 
in session, will probably authorize an issue of bonds to 
use in making the purchase. A most serious obstacle, 
though, would probably be the amount which would be 
expected to be paid. As appears by the report of the 
Alabama commissioners, the total population of the ter- 
ritory concerned was, in 1867, 26,671. The population 
now is 99,061. As also appears by the report, there 
were in 1867 two million acres of land belonging to the 
State of Florida of the average value of f 1.25 per acre, 
which would have been acquired by this State, in addi- 
tion to the five per cent, of the proceeds of the sale of 
public lands, whereas now the public lands amount to 
much less, and are not worth more than fifty cents per 
acre. On the other hand, the State revenue from the 
district concerned in 1N<;7 was only $31,245.92, whereas 
in 1899 the total taxes for State purposes were 
$71,792.43, and the State licenses, not included in State 
taxes, were $25,808.19, making a total of State revenue 
of $97,600.62. If these eight counties were annexed to 
Alabama under present conditions we should probably 
have to pay out of the State treasury for additional 
Stale officers the salaries of one chancellor $2,500, one 
circuit judge $2,500, one solicitor $2,400, making 
$7,400. In addition to this, on the b:isis of appropria- 
tions for public schools for the past year, it is probable 



25 

thai about. |30,()00 would he assigned as the proper pro- 
portion of the territory added, and ii is reasonable to 

suppose that there would be souk- increase in the ex- 
pense of other public institutions, such as the deaf, dumb 
and blind and insane asylums, amounting to, say, 
|10,000. On this basis, the total expenditure by the 
State mi accounl of this territory would be $47, -loo a 
veal-. If taxation and licenses remained on the same 
basis as under the Florida laws of L899, the return there- 
from for State purposes being $97,600, there would be 
a net gain to the state revenue of $50,000. With this 
not return, and without acquiring any public lands 
from Florida, Alabama could easily afford to pay one 
million dollars, which it could probably borrow now at 
least at 1 per cent. The yearly interest would be $40,000, 
leaving $10,000 a year to go into a sinking fund. It is 
mil within the range of probability, however, thai, if 
the Stale of Florida were willing at all to pari with any 
of its territory, it would ever again fix the price at 
so small an amount as one million dollars. 

Pensacola has grown to be a considerable city, and the 
total value of the real estate, personal property, rail- 
roads and telegraphs in the counties concerned is shown 
by the Florida comptroller's report to have been assessed 
for taxes in 1899 at neatly $13,000,000. This would 
come to Alabama instead of the "sand-banks and gopher 
hills" which the editor of the llayueville Examiner 
thought we were about to acquire in L869. It is but 
reasonable that the price should be proportionately in- 
creased. One of the main arguments used in L869 was 
that annexation was necessary in older to build up 
Pensacola and the iron ami coal industries of central 
Alabama. These ate now of no force, and time has 



26 

shown that the editor of the Hayneville Examiner was 
right in saying that Alabama iron and coal would be 
as much shipped through Pensacola as a Florida town 
as they would be if it became a part of Alabama, But, 
if there is a conclusive and final objection to annexation 
by Florida, it is the same that has always existed in 
the mind of every State — that it would never part, 
under any circumstances , or for any price, with any 
part of its territory because of its love for State integ- 
rity and its State pride. 

That there was considerable strength behind the 
movement of 1868 to 1873 is beyond doubt; but 
the reigns of government in both Alabama and Florida 
were at that time in the hands of reconstructionists, 
and a large proportion of the people of both States, 
imbued with the love of their States, were disfranchised. 

That annexation would be of advantage to Alabama 
is undoubted; it would add to the influence of the State 
in the Federal Government; the annexed territory 
would eventually bring large net tax returns to the 
State treasury; much material wealth and population 
would be added. But I do not undertake to forecast the 
result of the present movement, nor do I express any 
opinion as to whether it should succeed. I have only 
undertaken to give some historical facts and to discuss 
some legal projwsitions bearing on the matter. 

The responsibility for the failure of the negotiations 
of 1868-73 rests, so far as the record shows, on Florida. 
Having rejected Alabama's proposition then, the oppo- 
nents of annexation may say, as said the Alabama 
commissioners in their report to Governor Smith 
in 18()«): "The subject had better be forever 
dropped, for we do not conceive that a more 
favorable opportunity * * * will ever be pre- 
senter' than the one of 1868-73. 



002 489 017 P 



